As I noted in a prior post, two days ago, the State filed its Brief of Petitioner to the Court of Appeals of Maryland in the Adnan Syed case. That brief was accompanied by an Appendix of supporting documents. To prove a claim of ineffective assistance of counsel, the defendant must establish (1) deficient performance; and (2) prejudice, i.e., that adequate performance by trial counsel would have created the reasonable probability of a different outcome at trial. In this second post on the State's brief, I will focus on the State's arguments with regard to deficient performance.

The State's arguments on deficient performance boil down to the following:

(1) the defendant has the burden of establishing deficient performance;

(2) the death of trial counsel does not relieve PCR counsel from the burden of establishing deficient performance;

(3) Adnan's trial counsel, Cristina Gutierrez, is deceased; and

(4) the record is silent on Gutierrez's reason(s) for not contacting Asia McClain, meaning the defense hasn't satisfied its burden

I think everyone agrees with points 1-3, with the State supporting point 2 with a citation to Walker v. State, 194 So.3d 253 (Ala. Crim. App. 2015). The disagreement, of course, comes with point 4.

The State argues that "there are a number of fair explanations, each rooted in and consistent with the record, for why Syed's counsel could have reasonably decided that investigating McClain was unnecessary."

First, the alibi proposed by McClain was inconsistent with what Syed had told police, and Gutierrez reasonably could have concluded that “McClain’s testimony that she saw Syed at the public library after school, when Syed never before had mentioned the public library, could be harmful because it would give the State another inconsistency or omission in Syed’s statements to the police.”

Second, Gutierrez reasonably could have concluded that it was unnecessary to investigate a witness who could not testify to Syed’s daily habits and routine.

Third, as Judge Graeff points out in her dissent, part of Gutierrez’s strategy was to challenge the State’s evidence as to when Hae Min Lee was killed, not to accept the State’s proposed timeline and craft an alibi accordingly.

Fourth, Gutierrez could reasonably have concluded that talking to a witness who placed Syed at the public library was unnecessary because putting Syed at that location would have ironed out a wrinkle in the State’s case that Gutierrez intended to exploit.

Finally, Gutierrez reasonably could have decided that interviewing McClain was unnecessary because she reasonably believed that McClain was offering to falsify an alibi for Syed, that Syed was colluding with McClain to do so, or that the prosecution would use Syed’s and McClain’s communications with one another against Syed at trial.

Now, there are reasons to question all of these explanations:

First, the State has never produced any evidence to support its claim that Adnan told the police that he remain at Woodlawn High School between the end of school and the start of track practice (and that's assuming that the Woodlawn Public Library is a meaningfully different location from Woodlawn High School);

Second, Gutierrez presented no evidence/testimony regarding Adnan's routine between the end of school and the start of track practice;

Third, Gutierrez tried to get Debbie to testify (as she had at the first trial) that she saw Adnan outside the guidance counselor's office;

Fourth, given that the State claimed that Hae was dead by 2:36 P.M., it's hard to see how Asia testifying that she saw Adnan from 2:20-2:40 P.M. would have ironed out the wrinkle in the State's case; and

Fifth, Judge Welch rejected the factual contention that Gutierrez could have written off Asia's letters as an offer to lie or collude.

But that's not the biggest flaw with the State's argument(s). Essentially, the State is acknowledging that Gutierrez could have had no good reason for failing to contact Asia McClain but claiming that Adnan's postconviction counsel failed to satisfy his burden of establishing that Gutierrez lacked a good reason for failing to contact her.

Facially, that sounds plausible, but...you have to back it up with case law. As I've noted on this blog, there are cases from across the country finding that the failure to contact an alibi witness is ineffective assistance of counsel. Conversely, there's not a single case in which a court has rejected a claim of deficient performance when trial counsel failed to contact an alibi witness.

If the State's arguments were correct, you would expect to find at least one case in which, for instance, a court rejected a claim of ineffective assistance of counsel based on failure to contact an alibi witness because (1) that alibi contradicted what the defendant told the police; (2) defense counsel preferred another alibi strategy; (3) etc. Instead, the State is unable to point to any such cases...because they don't exist.

What do exist are cases in which courts have found ineffective assistance even when trial counsel is deceased, an alibi deviates from the story the defendant told police, and there are issues with the witness that trial counsel failed to contact. Indeed, Towns v. Smith, which I wrote about here, ticks off all of these boxes.

And so, this is the missing link in the State's case, and it's the link that's been missing throughout the entire appellate process. There are cases across the country in which courts have found ineffective assistance of counsel based on failure to contact an alibi witness. Conversely, there are no cases in which courts have found that failure to contact an alibi witness was reasonable or adequate based upon the hypothetical reasons that the State has proffered.

I just find it so ludicrous that the State is tying itself up in all these knots trying to come up with a million different reasons for why Gutierrez would not have just picked up the phone and called Asia. There is nothing preventing her from making any of the State’s theorized “strategic” decisions AFTER talking to Asia and hearing what she had to say. It just seems so obvious that she didn’t contact her because she forgot or otherwise dropped the ball.

Posted by: Ann | Sep 9, 2018 5:46:47 PM

The “most important case” thread reached 25 comments, so I’m hoping this gets seen here.

1-Really Colin: You want to know how “really colin” is less anonymous than “Paul”? Hmm let’s all think this one through... well, I do use “Paul” every single time I post here, whereas you use a totally different name each time you post on a thread, making it impossible to tie you to what you have argued in the past. That’s pretty obnoxious, taking the anonymity inherent with the internet to the next level.. And whether or not there is anyone else who has ever used the name “Paul” is irrelevant — although interesting side note, I do have the entire data set of comments made to this blog, and while I haven’t made all the posts by “Paul”, they are mostly all mine (190/200, or so, IIRC).

2- Did you even read my posts? From your response, it sounds like you didn’t. Could you try for a moment to hold off on sarcasm, and do your best to rephrase what my argument was?